BOARD DATE: 10 December 2015 DOCKET NUMBER: AR20150005080 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his bad conduct discharge (BCD) be upgraded to a general discharge (GD) under honorable conditions or a medical discharge. 2. The applicant states: a. When he was in 5th grade, he had a bad heart. At the age of 16, he passed out, fell in a swimming pool, and went into a coma for approximately one week. He was underwater without oxygen for about 5 to 8 minutes. He was told by doctors at the hospital that a certain amount of brain damage was done, and he has had problems ever since. b. When he joined the Army about a year later, he did not understand what was going on. c. He received several beatings from a senior noncommissioned officer, so he ran away. c. He has been in prison most of his life because he allowed the police to talk him into confessing to things he did not understand. d. He is now approaching an age that he cannot do physical labor anymore. e. He has tried to do the right things and is still trying. f. He is getting out of prison after 20 years on 2 January 2016 and will be homeless. He has spent 35 years out of 62 in jail. h. He is not looking for pity, but is only trying to get his life straightened out and would like his BCD to be upgrade to a GD or medical discharge. 3. The applicant has provided a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 11 September 1969, the applicant enlisted in the Regular Army (RA). 3. On 5 March 1970, he received nonjudicial punishment (NJP) for failing to go to his appointed place of duty. 4. On 5 August 1970, he received NJP for being absent without leave (AWOL) from 6 June 1970 to 26 June 1970, from 9 July 1970 to 23 July 1970, and from 29 July 1970 to 31 July 1970. 5. Summary Court-Martial Order Number 73, dated 3 November 1970, issued by Headquarters Command, United States Army Garrison, Fort Bragg, NC, shows that on 3 November 1970, the applicant was found guilty and convicted of: * being AWOL for the period 22 September 1970 to 28 September 1970 * being AWOL for the period 2 October 1970 to 5 October 1970 6. The court sentenced him to be confined at hard labor for one month, forfeitures of $75.00 per month for one month, and to be reduced to the pay grade of PVT/E-1. 7. Special Court-Martial Order Number 51, dated 6 April 1971, Headquarters, Fort Bragg, NC, shows that on 8 March 1971, the applicant, pursuant to his pleas of guilty, was convicted of: * being AWOL for the period 9 October 1970 to 11 October 1970 * being AWOL for the period 23 November 1970 to 8 December 1970 * being AWOL for the period 19 December 1970 to 22 December 1970 * being AWOL for the period 15 January 1971 to 26 January 1971 * being AWOL for the period 29 January 1971 to 1 February 1971 8. The court sentenced him to a BCD, to be confined at hard labor for 3 months, and forfeitures of $50.00 for 3 months. 9. Special Court-Martial Order Number 74, dated 10 May 1991, shows the unexecuted portion of the sentence to confinement at hard labor for 3 months as promulgated in Special Court-Martial Order Number 51, not subsequently modified, was remitted and affirmed pursuant to Article 66. It shows the appellate review was completed and the sentence, as thus modified, was ordered executed. 10. On 24 August 1971, the applicant was discharged with an under other than honorable conditions characterization of service and given a BCD Certificate. The DD Form 214 he was issued shows he completed 1 year, 5 months and 14 days creditable active service for this period. 11. The applicant states he had mental problems and should not have been allowed in the Army; however, he does not provide any documentation to support his claim. 12. Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic policy for the separation of enlisted personnel. a. Chapter 11 provided that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 13. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. DISCUSSION AND CONCLUSIONS: 1. The applicant received two NJPs and was convicted by two courts-martial of being AWOL on multiple occasions. He was issued a BCD, which was an authorized punishment, pursuant to the approved sentence of a special court-martial for being AWOL. 2. The appellate review was completed and the affirmed sentence ordered executed. His conviction and discharge were effected in accordance with applicable laws and regulations in effect at the time and the discharge appropriately characterizes the misconduct for which he was convicted. 3. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 4. Although the applicant states he had mental health issues, he provided no supporting documentation that would mitigate his misconduct. Therefore, absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate. As a result, clemency is not warranted in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __X______ _X_______ _X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ X _______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20120003365 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005080 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1